Relief cannot be granted for a claim that is not alleged in the petition and not litigated by the post-conviction court. Petitioner does not need to show evidence of prejudice if the trial court fails to give a proper concurrence instruction.

Hale and the State each petitioned for reconsideration of the post-conviction court’s decision to grant relief on two burglary charges but uphold his other convictions. Hale believed the language in the jury instruction confused the jury by not specifying that he was being tried as an accomplice. The State asked for reconsideration on the basis that the court used the wrong legal standard for determining prejudice. The Court of Appeals disagreed with both parties. Hale failed to raise any challenge to the “natural and probable consequences” instruction until his supplemental memorandum of additional authority. Although that language has been held as faulty by the Oregon Supreme Court, relief cannot be granted if the claim was not alleged in the petition or tried before the post-conviction court. The Court rejected the State’s contention that Hale needed to show some evidence of likely or actual prejudice when the trial court failed to give a Boots instruction. Established precedent states that failure to give a proper concurrence instruction tends to lead to prejudice. The request for a remand to determine prejudice is rejected. Reconsideration allowed; former opinion adhered to.